Nicaragua: Déjà Coup All Over Again?

This week, the United States helped bring an end to a serious political crisis in Honduras. A similar crisis is now brewing in Nicaragua. This time, the United States won't be as lucky.

In both cases, the root cause of the crisis was the same: elected presidents seeking to prolong their stay in office in violation of constitutional procedures. In Honduras, president Manuel Zelaya insisted on conducting an electoral consultation on whether to have a referendum to end term limits. The attorney general, the Congress, and the Supreme Court deemed this process unconstitutional and ordered the military to remove Zelaya. This coup produced the condemnation of most nations, including the United States, plunging the hemisphere into a serious crisis because the de facto government enjoyed widespread support at home. After many mistakes, the United States finally helped broker an agreement between the de facto government and Zelaya, paving the way for Zelaya's return to the presidency with far more limited powers than Zelaya ever had.

In Honduras, the administration deserves some credit. It stayed true to a widely praised promise made in the April Summit of the Americas: to adhere to international law. The relevant law was the 2001 Democratic Charter of the Organization of the American States, which calls on members to condemn any interruption of constitutional democracy.

But in Honduras, the United States also got lucky. The "condemned government" was ultimately a friend of the United States, respectful of democracy, embarrassed about the possibility of needing to repress, interested in preserving economic ties with the United States, and more important, uninterested in staying in office beyond the scheduled November elections. All of this boosted U.S. leverage.

In Nicaragua, the wrongdoer displays none of these attributes. U.S. leverage there will be close to nil.

The wrongdoer in Nicaragua is president Daniel Ortega. The very same person who tried to establish a dictatorship in Nicaragua in the 1980s, and then tried every possible trick to get himself re-elected until he finally succeeded in 2007, has just convinced a constitutional panel of the Supreme Court, populated by Danielistas, to rule that Article 147 of the Constitution, establishing term limits, is "inapplicable." This ruling has unleashed a new crisis.

There are at least three serious problems with this ruling. First, the ruling itself has few antecedents in the history of judicial review. Essentially, the court declared that an article in the Constitution is unconstitutional. This logic-defying argument has convinced no one in Nicaragua except die-hard Danielistas.

Second, Ortega is replicating Zelaya's tactics of using undemocratic tricks. In this case, the trick consisted of convincing no more than six judges, all Danielistas, to side with the president. This was done behind closed doors and in a matter of days, violating Article 194 stating that only the legislature can change the constitution.

Third, it's not just the procedure but also the actual change that is problematic. To understand the seriousness of both Zelaya's and Ortega's move, it helps to review the history of presidential term limits in Latin America. Presidential term limits are a Latin American invention--an antidote against dictators. They appear for the first time in the 1853 Argentine constitution, written in response to the dictatorship of Juan Manuel de Rosas (1829-1831, 1835-1852). Argentine democratic legal scholars back then were trying to come up with solution to the now well understood problem of incumbent's advantage, the idea that time is always on the side of the incumbent. As time progresses, presidents can co-opt more actors, by appointing more loyalists to the courts, electoral supervisory boards, and the military, and by assigning more state contracts to friends, family and favored groups. In democracies with weak institutions of checks and balances, this advantage is even starker. Some mechanism needed to be invented to stop the clock on presidents, hence presidential term limits.

Most presidential democracies, including the United States, followed suit and implemented some form of presidential term limit in the 20th century. The right of citizens to choose was compromised for the sake of another democratic ideal--safeguarding a level-playing between the incumbent and the opposition.

It is ironic that this criollo democratic doctrine is now under assault in precisely the region where it was born. Many countries in Latin America have relaxed term limits in the past two decades, invariably leading to political tensions. In countries where non-transparent tricks have been used, such as in Honduras and now Nicaragua, the crises have been more explosive.

In Spanish, there is a term for Zelaya's and Ortega's tricks--a golpe desde el estado, in contrast to a golpe de estado, a coup from the state rather than against the state. These golpes desde el estado, whereby the president uses questionable means to erode checks and balances, has become the most recurrent threat to democracy in the region.

The Honduras crisis ended because the United States succeeded in convincing all parties that both types of coups--the golpes de estado and the golpes desde el estado--are inadmissible. But in Nicaragua, this won't happen. Ortega is interested in a confrontation with the United States, not a rapprochement. He is deeply interested in staying in power forever and is not afraid of polarization (after all, he provoked a civil war in the 1980s). Furthermore, unlike Honduras, Nicaragua hardly trades with the United States, so U.S. sanctions will matter little.

In short, the success that the United States had in Honduras won't be repeated in Nicaragua. U.S. diplomats should not conclude that the crisis in Central America is over.